SERIES 200 POST-TRIAL: INTRODUCTORY
F 222 EVIDENCE
F 223 DIRECT AND CIRCUMSTANTIAL EVIDENCE: DEFINED
TABLE OF CONTENTS
F 222 EVIDENCE
F 222 Evidence: Paragraphs 1-5
F 222 Evidence: Paragraph 6C Re: Stipulations
F 222 Note 1 Juror Note Taking: Advisement That Argument Of Counsel May Not Be Readback To The Jury
F 223 DIRECT AND CIRCUMSTANTIAL EVIDENCE: DEFINED
F 223 Inst 1 Improper Implication That Defendant Must Disprove Elements
F 223 Inst 2 Applicability Of Circumstantial Evidence Principles To Expert Testimony
F 223 Note 1 Unconstitutional Inference Argument Rejected
F 223 Note 2 Limitation Of Reasonable Doubt/Burden Of Proof Principles To Circumstantial Evidence Improperly Implies That Such Principles Do Not Apply To Direct Evidence
F 223 Note 3 If CC 223 Is Given CC 224 and CC 225 Should Also Be Given
Return to Series 200 Table of Contents.
F 222 EVIDENCE
F 222 Evidence: Paragraphs 1-5
[See FORECITE F 105, et al.]
F 222 Evidence: Paragraph 6—Re: Stipulations
[See FORECITE F 104.1 Inst 5 and F 100.1 Inst 3.]
F 222 Note 1 Juror Note Taking: Advisement That Argument Of Counsel May Not Be Readback To The Jury
See FORECITE F 104 Note 3.
F 223 DIRECT AND CIRCUMSTANTIAL EVIDENCE: DEFINED
F 223 Inst 1 (a & b) Improper Implication That Defendant Must Disprove Elements
*Replace CC 223, paragraph 1, sentence 1 with:
Direct or circumstantial evidence or a combination of both may prove, or leave you with a reasonable doubt as to, any fact at issue in this trial.
*Replace CC 223, paragraph 2, sentence 1, with the following [added language is underlined; deleted language is stricken]:
Alternative a:
Both direct and circumstantial evidence are acceptable types of evidence to prove or, disprove leave you with a reasonable doubt as to, the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide, if you can, whether a fact in issue required to be proved by the prosecution has been proved or whether you have a reasonable doubt that it has been proved based on all the evidence.
Alternative b:
Both direct and circumstantial evidence are acceptable types of evidence to prove or, disprove leave you with a reasonable doubt as to, the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide consider all the evidence in attempting to decide whether a fact in issue required to be proved by the prosecution has been proved or whether you have a reasonable doubt that it has been proved based on all the evidence.
Points and Authorities
Failure To Relate To Prosecution’s Burden—CALCRIM 223 speaks in terms of whether the evidence can “prove or disprove” the “truth” of the facts such as the “elements of the charge.” Such language improperly implies an obligation on the part of the defendant to disprove the elements of the charge and/or to establish the truth of defensive facts. (See FORECITE F 104.1 Inst 1.)
Deletion of Language That Neither Type of Evidence Is Entitled to Greater Weight—It is true conceptually that circumstantial evidence and direct evidence are entitled to equal weight. However, in the specific factual context of any given trial the jurors must be free to decide what weight, if any, to give particular evidence. The language of CALCRIM 223 could erroneously leave the jurors with the impression that they are not free to give specific circumstantial evidence greater weight than other specific direct evidence or vice versa.
“A fundamental premise of our criminal trial system is that ‘the jury is the lie detector.’ [Citation.] Determining the weight and credibility of witness testimony, therefore, has long been held to be the ‘part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.’ [Citation.]” (U.S. v. Scheffer (1998) 523 US 303, 313 [118 SCt 1261; 140 LEd2d 413].) “Implicit in the right to trial by jury afforded criminal defendants under the 6th Amendment to the Constitution of the United States is the right to have that jury decide all relevant issues of fact and to weigh the credibility of witnesses.” (U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144; see also U.S. v. Gaudin (1995) 515 US 506, 511 [115 SCt 2309; 132 LEd2d 444]; Davis v. Alaska (1974) 415 US 308, 318 [94 SCt 1105; 39 LEd2d 347]; Bollenbach v. U.S. (1946) 326 US 607, 614 [66 SCt 402; 90 LEd 350] [“…the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials….” ]; United States v. Geston (9th Cir. 2002) 299 F3d 1130 [prosecutor’s repeated questions to defense witnesses, asking whether, if a government witness had testified to a specific fact, that witness would be lying, impacted defendant’s due process rights]; United States v. Rockwell (3rd Cir. 1986) 781 F2d 985, 991 [instructions which “improperly invaded the province of the jury to determine the facts and assess the credibility of witnesses …[were] sufficiently misleading to deprive Rockwell of a fair trial” ]; Snowden v. Singletary (11th Cir. 1998) 135 F3d 732, 738 [allowing expert testimony that 99% of child sexual abuse victims tell the truth usurped the jury’s fact-finding role and made the trial fundamentally unfair].)
Modification Of “Must Decide” Language—See FORECITE F 100.7 Inst 1.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization— To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion as To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
FORECITE CG 7.9 [Duty To Deliberate Fully And Fairly]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 223 Inst 2 Applicability Of Circumstantial Evidence Principles To Expert Testimony
See FORECITE F 224 Inst 4.
F 223 Note 1 Unconstitutional Inference Argument Rejected
It has been argued that CJ 2.00, CJ 2.01 and CJ 2.02 which CALCRIM 223 substantially tracks are constitutionally deficient unless limited to situations where it can be said “with substantial assurance” that the inferred fact more likely than not follows from the proved fact upon which it is made to depend. This argument was rejected in People v. Wilson (92) 3 C4th 926, 942-43, but the issue may still be preserved for federal habeas or certiorari. (See generally, FORECITE PG VII(B) and PG VII(C); see also FORECITE F 224 Note 1.)
CALJIC NOTE: See FORECITE F 2.01 n2.
F 223 Note 2 Limitation Of Reasonable Doubt/Burden Of Proof Principles To Circumstantial Evidence Improperly Implies That Such Principles Do Not Apply To Direct Evidence
In FORECITE F 224 Note 4, it was shown that the principles embodied in CALCRIM 224 and 225 regarding burden of proof and reasonable doubt are equally applicable to both circumstantial and direct evidence. However, apart from whether there is an affirmative duty to instruct in this regard, by limiting the principles to circumstantial evidence, CALCRIM 224 and CALCRIM 225 improperly imply to the jurors that they do not apply to direct evidence. That is, in CALCRIM 223 the jury is told that there are two types of evidence: direct and circumstantial. By then telling the jury that certain principles apply to circumstantial evidence, the jury cannot help but conclude, based on common logic, that those same principles do not apply to direct evidence. “Although the average layperson may not be familiar with the Latin phrase inclusio unius est exclusion alterius, the deductive concept is commonly understood ….” (People v. Castillo (1997) 16 C4th 1009, 1020 [conc. opn. of Brown, J.]; see also U.S. v. Crane (9th Cir. 1992) 979 F2d 687, 690 [maxim expressio unius est exclusio alterius “is a product of logic and common sense” ].) To reasonable minds, CD 224 and CALCRIM 225 would appear to include an intentional omission. That is how the Supreme Court reasoned in People v. Dewberry (1959) 51 C2d 548, 557:
“The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder.” (See also People v. Salas (1976) 58 CA3d 460, 474 [when a generally applicable instruction, such as CJ 2.02, is specifically made applicable to one aspect of the charge and not repeated with respect to another aspect, the inconsistency may be prejudicial error].)”
Effectively, the context highlights the omission, so the jury learns that the stated principles, while applying to circumstantial evidence, do not apply to direct evidence.
In sum, CALCRIM 224 and CALCRIM 225 erroneously mislead the jury into deducing that the principles stated in those instructions do not apply to direct evidence.
CALJIC NOTE: See FORECITE F 2.01 n6.
F 223 Note 3 If CC 223 Is Given CC 224 and CC 225 Should Also Be Given
When CC 223 is given CC 224 and 225 should also be given because they limit when the jurors may rely on circumstantial evidence. (See California Mandatory Criminal Jury Instruction Handbook (CJER) (2013) § 2.4, 2.118 [CC 223, CC 224 and CC 225 are all required sua sponte]; see also Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 2:3, Authors’ Notes, p. 40.)